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Thread: Theseus 626.9 Case...The REAL DEAL!

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    Ok, so there have been a lot of questions asked about my case. Some people know what is going on and what it is about, and others don't. I am here to set the story straight.

    • I was never arrested. The police are claiming (in court) that the reason they didn't arrest me is not because they didn't think I was within a zone (as I recall one officer actually saying "how far is it?" and even asked me about "laws pertaining to ammunition and schools".) but that they did not know 626.9 existed and therefore that I might have been breaking the law. This "white" lie by the officers prevents me from using the "if the cops didn't know, how could I have" defense.
    • For the record, I did not know there was a school there or that it was within 1000 feet. Regardless of what else, this is still a required element of the crime which has to be pruven by the DA. He can't prove knowledge because there was none.
    • I was in fact located on private property. It was not a public sidewalk subject to an easement. The focus of this case is not when I was IN the laundry mat, because I was exempt "within a business".
    • This case is about open carry because they seem to suggest that if it was in a locked case they would not have any further to go. The locked case exemption does not restrict it to private property. I am allowed to walk the grounds of the school if the gun is locked in a container.
    • This case is about trying to expand 626.9. The legislature is trying to expand the physical distance, this court is trying to expand the governments intrusioninto private property rights.
    Here are the rulings in my case that are worth knowing:

    • My detainment further the authority of 12031(e), which was testified by the officers only took a moment, was likely an illegal detainment.
    • The demanding of ID, although fruit of the poisonous tree due to the illegal detainment will be allowed because you can't throw out an ID once it is in play.
    • Although the detainment was likely illegal, there is no evidence to throw out since you can't throw out ID and the actual crime was the officers seeing the firearm, which happened before the 12031(e) check.
    • Private property is exempt from 626.9, but by allowing private property "open to the public" to be exempt aggravates the law and is contrary to the legislative intent of the law. It was ruled then, that although I was on private property, that I can not use a private property exemption defense because the private property was "open to the public".
    Here is the problem with these rulings.

    • If ID is obtained illegally, and is the only means the officers have of identifying you and later charging you with a crime, you can do nothing about it. In fact, it seems that in my case the officers would likely had to go back to the dispatch log to recover my DL#, as the officers testified that since after the interaction they didn't believe a crime to have existed the investigation was over and destroyed the field identification cards and all other information.
    • Interpreting the "private property" exemption to not protect private property "open to the public" means two things.
      • The DA is suggesting that, when in a school zone I am to take the locked container with the handgun inside the business and remove it from its case when inside of the business. My suspicion is that the intention here is to cause more concern to the public and thus making us lose more public support.
      • That the law is even more aggravated by this "open to the public" concept than it was prior to. As noted in the recent meeting at Bass Pro Shops, part of the southern parking lot is located within 1000' of a school. If one measured properly, the difference between being guilty of 626.9 and not could be the difference of merely parking one more space to the north. This means that the parking lot that was originally FULLY exempt is now not. It also means that law enforcement is able to utilize even more arbitrary discretion than it was previously allowed by the more narrow interpretation.
    Although I try and act as if I am likely to lose at trial, it is merely me trying to prevent myself from disillusioning myself. I still have "know or reasonably should know" and although it could cause trouble, jury nullification.

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    Theseus wrote:
    [*]Interpreting the "private property" exemption to not protect private property "open to the public" means two things.
    • The DA is suggesting that, when in a school zone I am to take the locked container with the handgun inside the business and remove it from its case when inside of the business. My suspicion is that the intention here is to cause more concern to the public and thus making us lose more public support.
    • That the law is even more aggravated by this "open to the public" concept than it was prior to. As noted in the recent meeting at Bass Pro Shops, part of the southern parking lot is located within 1000' of a school. If one measured properly, the difference between being guilty of 626.9 and not could be the difference of merely parking one more space to the north. This means that the parking lot that was originally FULLY exempt is now not. It also means that law enforcement is able to utilize even more arbitrary discretion than it was previously allowed by the more narrow interpretation.
    [/list]Although I try and act as if I am likely to lose at trial, it is merely me trying to prevent myself from disillusioning myself. I still have "know or reasonably should know" and although it could cause trouble, jury nullification.
    Still burns that a law which states "private property" wouldn't include private property. Are people now expected not only to memorize the volumes of gun laws but the legislative commentaries regarding them just in case the law doesn't say what the legislature may have meant it to say?

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    inbox485 wrote:
    Still burns that a law which states "private property" wouldn't include private property. Are people now expected not only to memorize the volumes of gun laws but the legislative commentaries regarding them just in case the law doesn't say what the legislature may have meant it to say?
    Technically, yes.

    I have to look it up, it might even be in Tapia.

    It is assumed in the court that all citizens familiarize themselves of all laws, legislative intent, case law, and judicial interpretations. There was a case on this and I am looking for the cite.

    I am trying to find the site, but, as citizens we have to know every in and out of the law, but the police don't. I wonder though. . . a cop is a citizen. . . so why should he not have to know?

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    Theseus wrote:
    inbox485 wrote:
    Still burns that a law which states "private property" wouldn't include private property. Are people now expected not only to memorize the volumes of gun laws but the legislative commentaries regarding them just in case the law doesn't say what the legislature may have meant it to say?
    Technically, yes.

    I have to look it up, it might even be in Tapia.

    It is assumed in the court that all citizens familiarize themselves of all laws, legislative intent, case law, and judicial interpretations. There was a case on this and I am looking for the cite.

    I am trying to find the site, but, as citizens we have to know every in and out of the law, but the police don't. I wonder though. . . a cop is a citizen. . . so why should he not have to know?
    Tyrannical governments love using feigned ignorance and "I was just following orders" as a defense to massive patterns of intentional, knowing, and evil conduct. Wasn't allowed at Nuremberg, shouldn't be allowed here.

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    I think a blindfolded jury brought to that spot would help your case. Set them at 3 seperate locations, tell them that one of those 3 will be a school zone. Bring them back to the court and poll them as to which one they think was the school zone. If they all choose the wrong one or all choose different ones, then obviously you had no idea and should not have known. FTW



    Edit: or panorama photos of 3 different laundry mats, one of the locations being where you specifically were at.

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    Streetbikerr6 wrote:
    I think a blindfolded jury brought to that spot would help your case. Set them at 3 seperate locations, tell them that one of those 3 will be a school zone. Bring them back to the court and poll them as to which one they think was the school zone. If they all choose the wrong one or all choose different ones, then obviously you had no idea and should not have known. FTW



    Edit: or panorama photos of 3 different laundry mats, one of the locations being where you specifically were at.
    I love it. "Which laundromat pictured does part of the Bill of Rights not apply?"

    I went through and looked for all instances of "reasonably should know" in the penal code. Most things that we are reasonably supposed to know have to do with things we can see, like if you're assaulting a person and you know or should know that that person is a police officer, then you're guilty of an additional crime. Or if you're raping somebody, and you know or reasonably should have known that that person is under 18, then you're guilty of an additional crime.

    The only reference to "reasonably should know" which involves knowing something you probably can't see is in 626.9.

    "Reasonably should know" is in the statute requiring people to lock up their firearms when a child could get a hold of it, but this is where you are in control of the domain (your house, your apartment).

    626.9 is the ONLY statute I found where we can literally have no evidence of what we should have known. I'd like to think that such wording could be thrown out as unenforceable.

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    Regular Member mjones's Avatar
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    bigtoe416 wrote:
    I love it. "Which laundromat pictured does part of the Bill of Rights not apply?"

    I went through and looked for all instances of "reasonably should know" in the penal code. Most things that we are reasonably supposed to know have to do with things we can see, like if you're assaulting a person and you know or should know that that person is a police officer, then you're guilty of an additional crime. Or if you're raping somebody, and you know or reasonably should have known that that person is under 18, then you're guilty of an additional crime.

    The only reference to "reasonably should know" which involves knowing something you probably can't see is in 626.9.

    "Reasonably should know" is in the statute requiring people to lock up their firearms when a child could get a hold of it, but this is where you are in control of the domain (your house, your apartment).

    626.9 is the ONLY statute I found where we can literally have no evidence of what we should have known. I'd like to think that such wording could be thrown out as unenforceable.
    Excellent analysis Bigtoe!

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    mjones wrote:
    bigtoe416 wrote:
    I love it. "Which laundromat pictured does part of the Bill of Rights not apply?"

    I went through and looked for all instances of "reasonably should know" in the penal code. Most things that we are reasonably supposed to know have to do with things we can see, like if you're assaulting a person and you know or should know that that person is a police officer, then you're guilty of an additional crime. Or if you're raping somebody, and you know or reasonably should have known that that person is under 18, then you're guilty of an additional crime.

    The only reference to "reasonably should know" which involves knowing something you probably can't see is in 626.9.

    "Reasonably should know" is in the statute requiring people to lock up their firearms when a child could get a hold of it, but this is where you are in control of the domain (your house, your apartment).

    626.9 is the ONLY statute I found where we can literally have no evidence of what we should have known. I'd like to think that such wording could be thrown out as unenforceable.
    Excellent analysis Bigtoe!
    Well in a court with jurors I think the only "reasonably should know" evidence would be maybe a school cross walk, or school kids walking by at the time he was there or school busses lined up. That's about it, and I doubt any of that was there. Obviously though, even with those things, who would pay attention to that and know it was a school zone, Im sure we all drive by tons of school zones not knowing. Now that presents another obstacle, will the jurors assume that if you are open carrying that you should be looking out for signs like I mentioned?

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    Streetbikerr6 wrote:
    mjones wrote:
    bigtoe416 wrote:
    I love it. "Which laundromat pictured does part of the Bill of Rights not apply?"

    I went through and looked for all instances of "reasonably should know" in the penal code. Most things that we are reasonably supposed to know have to do with things we can see, like if you're assaulting a person and you know or should know that that person is a police officer, then you're guilty of an additional crime. Or if you're raping somebody, and you know or reasonably should have known that that person is under 18, then you're guilty of an additional crime.

    The only reference to "reasonably should know" which involves knowing something you probably can't see is in 626.9.

    "Reasonably should know" is in the statute requiring people to lock up their firearms when a child could get a hold of it, but this is where you are in control of the domain (your house, your apartment).

    626.9 is the ONLY statute I found where we can literally have no evidence of what we should have known. I'd like to think that such wording could be thrown out as unenforceable.
    Excellent analysis Bigtoe!
    Well in a court with jurors I think the only "reasonably should know" evidence would be maybe a school cross walk, or school kids walking by at the time he was there or school busses lined up. That's about it, and I doubt any of that was there. Obviously though, even with those things, who would pay attention to that and know it was a school zone, Im sure we all drive by tons of school zones not knowing. Now that presents another obstacle, will the jurors assume that if you are open carrying that you should be looking out for signs like I mentioned?
    As mentioned, reasonably should have known is to subjective to be able to determine. . . It really boils down to what those jurors think at that specific trial on that specific day.

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    Regular Member We-the-People's Avatar
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    Theseus wrote:
    As mentioned, reasonably should have known is to subjective to be able to determine. . . It really boils down to what those jurors think at that specific trial on that specific day.
    This brings up a question I have for all of you.

    How many of you would do your absolute best to get on a jury for a criminal trial rather than trying to get out of it like is so common?

    You see, if responsible, knowledgeable, Constitutionally aware, citizens don't get onto juries, we can't expect jury verdicts that consider things such as Constitutional rights having been violated or jury nullification in the case of a bad law. For those of us who are open carry advocates, we don't have much chance of getting onto any kind of a jury where that's the issue but if we don't run our mouths, answer questions short and sweet (and absolutely honestly....god don't lie of decieve to get on a jury) and there's a chance.

    Of course any prosecutor worth his salt in a gun rights case is going to do his best to disqualify any and every prospect with a concealled carry license (though in Cali those aren't very common so might not come up) or open carrier.
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
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    We-the-People wrote:
    Theseus wrote:
    As mentioned, reasonably should have known is to subjective to be able to determine. . . It really boils down to what those jurors think at that specific trial on that specific day.
    This brings up a question I have for all of you.

    How many of you would do your absolute best to get on a jury for a criminal trial rather than trying to get out of it like is so common?
    Already have. Got sworn on what ended up being a mistrial. Then they summonsed me again while I was still in the recently-sworn timeframe. I forget if they cited a law about it, but I sent in proof of recent service anyway to keep everyone honest. I'm now in the clear and waiting for a valid summons.

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    Regular Member We-the-People's Avatar
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    I'd have never mentioned I'd been recently sworn and gone on in.

    I've only been called about 4 times (I'm 48) but I did spend a lot of time out of state in the military and missed a bunch of possibilities. They once sent me the "calling card" to appear in Cali (legal resident of that country) when I was stationed in Maryland. Ummmm NOPE, can't do, here's my orders.

    The one jury I did get onto (all the other times we were all sent home due to a pleading) was 11 weeks for a civil trial. Scary in the jury room. We had 5 people vote for the plaintiff in a case that had nothing. Three of those revealed that they voted for the plaintiff "the evidence doesn't show the defendant did anything wrong but hedefendant has insurance and it won't cost him anything but these people lost everything". WHAT??????

    We convinced 2 of them that was wrong and got the right verdict. It the PERFECT example of why we need to get people on juries that have a brain.


    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
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    We-the-People wrote:
    god don't lie of decieve to get on a jury
    We-the-People wrote:
    I'd have never mentioned I'd been recently sworn and gone on in.
    Make up your mind.

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    Regular Member mjones's Avatar
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    I've gottena jury summons every couple of years ever since I turned 18; I'm 40 now. The farthest its gone for me was jury selection and I got punted on those 2 occasions.

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    It is worse than just dumb jurors, we were arguing about the charge
    the judge gave us, and were told "I already gave it to you" by him.
    It boiled down to 'knowingly' as to the severity of the charges.

    Had those 'they have insurance' types, I convinced them that by
    the time you add in the legal fees and court costs, that is the amount
    he is paying. Talked them done from 150K to 6500. Which was more than fair
    for the crime committed. Had a loophole for the defendant if it came
    to that. But I will have my recorder with me the next time.
    But I am betting a contempt of court if I get to jury selection again, because
    I will be honest, and that will not go over well. I know what is going
    to be asked, and I am dieing to give an answer they are never going
    to believe.:shock:
    Course if it is a gun case I will have to keep quite to protect all our rights.

    The defense lawyer had the best closing argument I ever heard.
    "Don't take your disgust of me out on my client"
    We were getting exasperated over the same objection dozens of times a
    day over the same thing.
    My joke about lawyers being human when we caught him in the john went over big.:celebrate


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    N6ATF wrote:
    We-the-People wrote:
    god don't lie of decieve to get on a jury
    We-the-People wrote:
    I'd have never mentioned I'd been recently sworn and gone on in.
    Make up your mind.
    There is a DISTINCT difference between "not mentioning" and deceiving. If directly asked, certainly you MUST be truthful but you do not have to VOLUNTEER any information.

    So if I was asked, in person or on a form, I'd tell them I'd been recently sworn but I certainly wouldn't go volunteering the information.

    So there is no conflict in my two statements. Does that clarify it?
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
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    We-the-People wrote:
    N6ATF wrote:
    We-the-People wrote:
    god don't lie of decieve to get on a jury
    We-the-People wrote:
    I'd have never mentioned I'd been recently sworn and gone on in.
    Make up your mind.
    There is a DISTINCT difference between "not mentioning" and deceiving. If directly asked, certainly you MUST be truthful but you do not have to VOLUNTEER any information.

    So if I was asked, in person or on a form, I'd tell them I'd been recently sworn but I certainly wouldn't go volunteering the information.

    So there is no conflict in my two statements. Does that clarify it?
    Like I said, I forget if they cited a law about it. Or for that matter, explicitly asked me verbally or in written form. Lying by omission includes failures to correct pre-existing misconceptions. Putting prior service as one exclusion tells me that they want their pre-existing misconceptions, such as unknowingly practicing lawyers or violent felons getting summonsed, to be corrected.

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    Regular Member We-the-People's Avatar
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    It sounds like this was on a form they mailed to your (the summons).

    The ones I've received, as well as those my wife has received, only requested information on prior service if you were requesting an exemption in which case we could mark the box indicating that we'd already served recently and mail it back to be excused. Since neither of us wants to be excused, we wouldn't mail it back requesting to be and therefore it would be a legal action.

    I'm sure every state and every jurisdiction has variations in their summons process, perhaps yours are different from those we've gotten.
    "The Second Amendment speaks nothing to an unfettered Right". (Post # 100)
    "Restrictions are not infringements. Bans are infringements.--if it reaches beyond Reasonable bans". (Post # 103)
    Beretta92FSLady
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    Disclaimer: I am not a lawyer, nothing in any of my posts should be considered legal advice. If you need legal advice, consult a reputable attorney, not an internet forum.

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    I apparently am getting a new ADA prosecutor and some other potentially good news.

    Next court date Oct. 2nd.

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    Regular Member coolusername2007's Avatar
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    Interesting...what exactly does that mean? Did they kick your case down to some junior level prosecutor, or what?
    "Why should judicial precedent bind the nation if the Constitution itself does not?" -- Mark Levin

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    Theseus wrote:
    inbox485 wrote:
    Still burns that a law which states "private property" wouldn't include private property. Are people now expected not only to memorize the volumes of gun laws but the legislative commentaries regarding them just in case the law doesn't say what the legislature may have meant it to say?
    Technically, yes.

    I have to look it up, it might even be in Tapia.

    It is assumed in the court that all citizens familiarize themselves of all laws, legislative intent, case law, and judicial interpretations. There was a case on this and I am looking for the cite.

    I am trying to find the site, but, as citizens we have to know every in and out of the law, but the police don't. I wonder though. . . a cop is a citizen. . . so why should he not have to know?
    While reading on another topic I came across a quote in another case used to ignore the legislative memo on detents in folding knives.
    When the language of a specific statute has "'no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.' [Citation.]" (Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227.)
    According to this, since the term "private property" is not ambiguous, the legislative intent is irrelevant. If the legislature wants to include private property accessible to the public, they could / can say so.

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    And the judge agreed that the wording was not ambiguous, but then looked to legislative intent anyway.

    The judge is a long standing judge and is highly experienced. He is therefore, in my mind, willingly making the decisions knowing the fact that it is contrary to jurisprudence and long standing legal cannons.

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    http://www.worldlawdirect.com/articl...le-lenity.html

    Google "RULE OF LENITY"

    You should be able to use some of what you find.

    Within the jurisprudence of Anglo-American Law there is a common law principle that has come to be known as the RULE OF LENITY[/b]. ]It states that penal statues should be strictly construed against the government or parties seeking to enforce statutory penalties and in favor of the person on whom penalties are sought to be imposed. The rule essentially says that where a criminal statue is ambiguous it should be interpreted in such a way as to favor the accused.


    One rationale behind the principle of lenity is for laws to be clearly stated. Citizens should not have to guess whether a law applies to them or not.


    A second rationale behind the rule of lenity has to do with separation of powers. The rule serves to prevent the judicial system from creating laws unintended by the legislature. Because the functions of the courts is to interpret statues and not to enact them.






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    Edward Peruta wrote:
    http://www.worldlawdirect.com/articl...le-lenity.html

    Google "RULE OF LENITY"

    You should be able to use some of what you find.

    Within the jurisprudence of Anglo-American Law there is a common law principle that has come to be known as the RULE OF LENITY. ]It states that penal statues should be strictly construed against the government or parties seeking to enforce statutory penalties and in favor of the person on whom penalties are sought to be imposed. The rule essentially says that where a criminal statue is ambiguous it should be interpreted in such a way as to favor the accused.


    One rationale behind the principle of lenity is for laws to be clearly stated. Citizens should not have to guess whether a law applies to them or not.


    A second rationale behind the rule of lenity has to do with separation of powers. The rule serves to prevent the judicial system from creating laws unintended by the legislature. Because the functions of the courts is to interpret statues and not to enact them.
    That is one of the legal cannons the judge ignored.

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    Theseus wrote:
    Edward Peruta wrote:
    http://www.worldlawdirect.com/articl...le-lenity.html

    Google "RULE OF LENITY"

    You should be able to use some of what you find.

    Within the jurisprudence of Anglo-American Law there is a common law principle that has come to be known as the RULE OF LENITY. ]It states that penal statues should be strictly construed against the government or parties seeking to enforce statutory penalties and in favor of the person on whom penalties are sought to be imposed. The rule essentially says that where a criminal statue is ambiguous it should be interpreted in such a way as to favor the accused.


    One rationale behind the principle of lenity is for laws to be clearly stated. Citizens should not have to guess whether a law applies to them or not.


    A second rationale behind the rule of lenity has to do with separation of powers. The rule serves to prevent the judicial system from creating laws unintended by the legislature. Because the functions of the courts is to interpret statues and not to enact them.
    That is one of the legal cannons the judge ignored.
    At least you already have a solid appeal if you loose round 1.

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